My father passed away on June 26th 2008. He has a will. Do we need to go to propate?

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My father passed away on June 26th 2008. He has a will. Do we need to go to propate?

The will states that the house goes to his two bilological daughters but my mom say according to Utah state laws the house is hers. I am listed as the executor of the will. I am supposed to return home to Japan on the 11th of July. I need to know where to start to get this going before I leave. Or do I have to see this through to the end?

Asked on July 4, 2009 under Estate Planning, Utah

Answers:

Paul W. Jones, JD, CPA / Paul W. Jones, Attorney at Law / CPA

Answered 11 years ago | Contributor

Utah actually does not recognize "tenancy by the entirety." Such a tenancy is considered a joint tenancy under Utah law. The result would be the same however. If your mother and father are listed on the deed conveying them the home, Utah law presumes that it is a joint tenancy. Thus, upon the death of your father it would automatically transfer to your mother, regardless of any language in his will. If the deed is only in your father's name or is unclear, then you should have a lawyer review it to be certain and help you through the probate process. Let me know if I can help. Regards,

-Paul

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Whose name was the house in?  If it was in both your father's and mother's names then under Utah law the property would be presumed to be held by the two of them in "tenancy by the entirety".  This means that upon the death of one spouse the real estate passes outright to the surviving spouse.  In your case, your mother would take over as sole owner of the house.

If the house was held in your father's name alone, it would pass pursuant to the terms of your father's will.  However, in Utah, a person cannot use a will or a trust to disinherit a spouse.  Upon death the surviving spouse is entitled to what is known as an “elective share” of the marital estate.  Generally, this means that a surviving spouse receives a minimum of one-third of the deceased's estate.

You should really consult with an attorney in your area.  They'll be best to advise how to handle all of this.  If money is an issue, try going down to the local probate court;  the clerks there can at times be extremely knowledgeable and helpful. 

Also, I've provided a link to a site that will give you some general background as to probate procedures in Utah:  http://www.utcourts.gov/howto/wills/

Best of luck.


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